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Saturday, 8 April 2017

The limited question is, whetheropportunity should have been given to the complainant to recordhis verification. The question of issue of process is to beconsidered under Chapter XV of the Code of Criminal Procedure.The stage of Section 256 of the Code of Criminal Procedure wasnot yet reached because Section 256 provides that, if summonshas been issued on complaint and thereafter complainantremains absent, the Magistrate would have discretion to acquitthe accused.

2. The learned counsel for the applicant - complainanthas tendered across the bar certified copy of application whichwas filed on 15.4.2015 for adjournment as the complainant hadsome difficulty. It was a fresh matter dated 3.3.2015, which hadbeen registered by the Court of Judicial Magistrate, First Class on9.3.2015. It is not clear how the Magistrate observed that thecomplaint had been filed on 5.2.2015 and proceeded to reject theapplication and dismiss the complaint. It was unreasonable onthe part of the trial Court not to give some breathing time to thecomplainant especially when the complainant had filed anapplication.The trial Court, without recordingverification, passed orders stating that the complaint was beingdismissed for want of verification under section 203 of the Codeof Criminal Procedure. Section 203 of the Code of CriminalProcedure can be invoked only after considering the statementon oath, if any, of the complainant and of the witnesses, and theresult of the enquiry or investigation, if any, under section 202.The said stage was yet not reached. Thus, the impugned ordercannot be maintained. IN THE HIGH COURT OF JUDICATURE AT BOMBAY,BENCH AT AURANGABADCRIMINAL APPLICATION NO.3714 OF 2015M/s Umedmal Bhikulal,

V Saibaba Trading Company,

CORAM: A.I.S. CHEEMA, J.DATED: 5th May, 2016.Citation: 2017 ALLMR(CRI) 10771. Heard counsel for the applicant - original complainantand learned A.P.P. for respondent No.2/ State. In this matter,this Court earlier issued notice to the respondent No.1 - originalaccused. However, now it is noticed that, in the trial Court, thecomplaint came to be dismissed even before the process wasissued. At the stage of issue of process, the procedure does notcontemplate hearing the accused. As such, it is not necessary tofurther pursue this matter for service of notice on the respondentNo.1 - original accused. The limited question is, whetheropportunity should have been given to the complainant to recordhis verification. The question of issue of process is to beconsidered under Chapter XV of the Code of Criminal Procedure.The stage of Section 256 of the Code of Criminal Procedure wasnot yet reached because Section 256 provides that, if summonshas been issued on complaint and thereafter complainantremains absent, the Magistrate would have discretion to acquitthe accused.

2. The learned counsel for the applicant - complainanthas tendered across the bar certified copy of application whichwas filed on 15.4.2015 for adjournment as the complainant hadsome difficulty. It was a fresh matter dated 3.3.2015, which hadbeen registered by the Court of Judicial Magistrate, First Class on9.3.2015. It is not clear how the Magistrate observed that thecomplaint had been filed on 5.2.2015 and proceeded to reject theapplication and dismiss the complaint. It was unreasonable onthe part of the trial Court not to give some breathing time to thecomplainant especially when the complainant had filed anapplication.3. The effect of the order passed by the trial Court isthat of "discharge" where fresh complaint would not be barred.However, looking to the fact that the present complaint arisesout of Section 138 of the Negotiable Instruments Act, whichrequires filing of a complaint in a particular time after notice hasbeen issued, it would be appropriate to invoke revisionaljurisdiction by this Court and correct the orders which have beenpassed by the trial Court. The trial Court, without recordingverification, passed orders stating that the complaint was beingdismissed for want of verification under section 203 of the Code

of Criminal Procedure. Section 203 of the Code of CriminalProcedure can be invoked only after considering the statementon oath, if any, of the complainant and of the witnesses, and theresult of the enquiry or investigation, if any, under section 202.The said stage was yet not reached. Thus, the impugned ordercannot be maintained.4. The earlier order issuing notice to respondent No.1 -original accused, are recalled, and invoking revisional jurisdiction,the impugned order dated 15.4.2015 passed by the JudicialMagistrate, First Class, Kalamnuri are quashed and set aside.The complaint is restored. The trial Court shall give opportunityto the complainant and record verification as contemplated inChapter XV of the Code of Criminal Procedure. The complainantshall appear before the trial Court for verification on 23rd May2016. This application is accordingly finally disposed of.(A.I.S. CHEEMA, J.)